Second Circuit Reverses Weinstein in Light Cigarette Case

Rule 23 is not a one-way ratchet, empowering a judge to conform the law to the proof. We therefore reverse the order of the district court and decertify the class. — Judge John Walker, Second Circuit Court of Appeals on Thursday reversing Judge Jack Weinstein’s grant of class certification for “light” cigarette litigants

If you detect a faint hint of unhappiness in those lines, we’re with you.

Earlier today, the Second Circuit ruled that, “given the number of questions that would remain for individual adjudication” — such as whether a given plaintiff smoked light cigarettes for their relative health benefits, or for some other reason, such as taste — Rule 23′s ‘predominance’ requirement was not satisfied in the so-called light cigarette litigation (along with judge Walker on the panel were judges Rosemary Pooler and Ralph Winter). (Here and here for past LB coverage.)

In 2006, Weinstein certified the putative class of 50 million plaintiffs (not a typo), which sought $800 billion in damages on a theory that cigarette makers — including Altria Group, Lorillard and R.J. Reynolds — had allegedly deceived them into believing that light cigarettes were healthier than regular, full-flavored smokes. The plaintiffs’ damages request was based largely on economic grounds: that the deception caused the plaintiffs to buy cigarettes that weren’t worth their price.

Wanting to get a sense of what it feels like to defeat 50 million plaintiffs, we called up Jones Day’s Ted Grossman. Grossman represented RJR and Brown & Williamson in the case, and he also argued the appeal before the Second Circuit. Grossman, in Florida on the golf links with his wife, told the Law Blog that the decision “is the product of 30 years of give and take between the district court and the Second Circuit over the individual rights of defendants to not have the diverse claims of diverse people homogenized for reasons of efficiency.”

When asked whether he expects to be back in court defending individual claims of light cigarette smoker, Grossman said no. “The whole theory of these cases is trumped up. They’re a vehicle for establishing attorney’s fees. But they’re not redressing a true injury because these cases are brought by people who don’t allege that they’re sick and don’t allege that they wouldn’t have smoked. They’re just alleging that they bought the wrong cigarettes.”

We also reached out to Michael Hausfeld of Cohen Milstein Hausfeld & Toll, the lawyer for the plaintiffs, but weren’t able to get him. We’ll let you know if we hear back.

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